Citation Nr: 9817244
Decision Date: 06/04/98 Archive Date: 06/15/98
DOCKET NO. 96-51 987 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for gastritis.
2. Entitlement to service connection for a lower back
disability.
3. Entitlement to service connection for the residuals of a
left long finger injury.
4. Entitlement to service connection for the residuals of an
injury to the right thumb.
5. Entitlement to service connection for a right knee
condition.
6. Entitlement to service connection for a left knee
condition.
7. Entitlement to service connection for hypertension.
8. Entitlement to an increased evaluation for the residuals
of an injury to the jaw, currently rated as 10 percent
disabling.
9. Entitlement to a compensable evaluation for the residuals
of a right ankle injury.
10. Entitlement to a compensable evaluation for the
residuals of a left ankle injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had active military service from November 1979 to
October 1992.
This matter came before the Board of Veterans’ Appeals
(hereinafter the Board) on appeal from an October 1994 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO), in St. Petersburg, Florida.
A hearing was held in September 1997, in St. Petersburg,
Florida, before Lawrence M. Sullivan, who is the Board member
rendering the determination in this claim and who was
designated by the Chairman to conduct that hearing, pursuant
to 38 U.S.C.A. § 7107 (West Supp. 1996)(amending 38 U.S.C.A.
§ 7102(b) (West 1991)). A transcript of the hearing was
produced and has been included in the claims folder for
review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains that while in service, he suffered
numerous injuries that have left him with residual
disabilities and conditions. He also contends that he has
hypertension and a gastrointestinal condition, and that these
two disabilities began while he was in service. He asks for
VA benefits for all of these conditions. Additionally, he
avers that his left and right ankle disabilities, along with
his jaw condition, are underrated, and should be rated
higher.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claim for
entitlement to service connection for gastritis, the
residuals of a left long finger injury, and disabilities of
the right and left knee is not well-grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
agency of original jurisdiction.
2. The veteran has not been diagnosed as having gastritis.
3. The veteran does not suffer from any residuals of an
injury to the left long finger.
4. A diagnosis of a current disability of the right or left
knee has not been proffered.
CONCLUSIONS OF LAW
1. The claim for entitlement to service connection for
gastritis is not well-grounded. 38 U.S.C.A. §§ 1101, 1110,
5107(a) (West 1991 & Supp. 1997); 38 C.F.R. § 3.303 (1997);
Edenfield v. Brown, 8 Vet. App. 284 (1995) (en banc).
2. The claim for entitlement to service connection for the
residuals of an injury to the left long finger is not well-
grounded. 38 U.S.C.A. §§ 1101, 1110, 5107(a) (West 1991 &
Supp. 1997); 38 C.F.R. § 3.303 (1997); Edenfield v. Brown, 8
Vet. App. 284 (1995) (en banc).
3. The claim for entitlement to service connection for a
right knee condition is not well-grounded. 38 U.S.C.A.
§§ 1101, 1110, 5107(a) (West 1991 & Supp. 1997); 38 C.F.R.
§ 3.303 (1997); Edenfield v. Brown, 8 Vet. App. 284 (1995)
(en banc).
4. The claim for entitlement to service connection for a
left knee condition is not well-grounded. 38 U.S.C.A.
§§ 1101, 1110, 5107(a) (West 1991 & Supp. 1997); 38 C.F.R.
§ 3.303 (1997); Edenfield v. Brown, 8 Vet. App. 284 (1995)
(en banc).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A service connection claim must be well-grounded. A well-
grounded claim requires more than mere allegations; it must
be plausible and with merit. 38 U.S.C.A. § 5107 (West 1991 &
Supp. 1997); Tirpak v. Derwinski, 2 Vet. App. 609 (1992);
Murphy v. Derwinski, 1 Vet. App. 78 (1990). For a claim to
be well-grounded, there must be:
(1) a medical diagnosis of a current
disability;
(2) medical, or in certain
circumstances, lay evidence of in-service
occurrence or aggravation of a disease or
injury; and
(3) medical evidence of a nexus between
an in-service injury or disease and the
current disability.
See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78
F.3d 604 (Fed. Cir. 1996) (table). Where the determinative
issue involves medical causation, competent medical evidence
to the effect that the claim is “plausible” is required.
See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However,
for the second element, the type of evidence needed to make a
claim well-grounded depends upon the types of issues
presented by a claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993). For some factual issues, such as the
occurrence of an injury, competent lay evidence may be
sufficient. However, where the claim involves issues of
medical fact, such as medical causation or medical diagnoses,
competent medical evidence is required. Id. at 93. Lay
evidence is also acceptable to show incurrence in service if
the veteran was engaged in combat and the evidence is
consistent with the circumstances, conditions and hardships
of such service, even though there is no official record of
such incurrence. 38 U.S.C.A. § 1154 (West 1991 & Supp.
1997); 38 C.F.R. § 3.304(d) (1996).
Where such evidence is not submitted, the claim is not well-
grounded, and the initial burden placed on the veteran is not
met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992).
Moreover, if a claim is not well-grounded, then the Secretary
no longer has a duty to assist a claimant in the developing
the facts pertinent to the claim. 38 U.S.C.A. § 5107 (West
1991 & Supp. 1997); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).
The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate that claim.
Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In this regard,
the Court has observed that the statutory prerequisite of
submitting a “well-grounded” claim “reflects a policy that
implausible claims should not consume the limited resources
of the VA and force into even greater backlog and delay
claims which--as well-grounded--require adjudication. . . .
Attentiveness to this threshold issue is, by law, not only
for the Board but for the initial adjudicators, for it is
their duty to avoid adjudicating implausible claims at the
expense of delaying well-grounded ones.” Grivois v. Brown,
6 Vet. App. 136, 139 (1994).
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. See Robinette
v. Brown, 8 Vet. App. 69, 75-76 (1995); King v. Brown, 5 Vet.
App. 19, 21 (1993).
Where the issue is factual in nature, e.g., whether an
incident or injury occurred in service, competent lay
testimony, including a veteran’s solitary testimony, may
constitute sufficient evidence to establish a well-grounded
claim under [38 U.S.C.A. §] 5107(a). See Cartright v.
Derwinski, 2 Vet. App. 24 (1991). However, where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. See
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Furthermore,
“Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. See 38 U.S.C.A.
§ 1110 (West 1991 & Supp. 1997). In the absence of proof of
a present disability there can be no valid claim.”
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Considering these criteria, the Board finds that the veteran
has not met his statutory burden of submitting evidence of a
well-grounded claim for service connection for a left long
finger condition and gastritis.
I. Residuals of an Injury to the Left Long Finger
The veteran contends that service connection for the
residuals of a left finger injury is warranted. Yet, medical
evidence showing that the veteran now suffers from the said
residuals have not been proffered. During a VA examination
in June 1994, he reported that it had been fractured, but the
examiner noted that:
. . . he has no real problems at this
time and doesn’t complain of any
deformities or abnormalities.
The medical examination failed to reveal a disability of the
left long finger.
For a claim to be well-grounded, there must be competent
medical evidence of a current disability, the occurrence of a
condition or disability while in service, and a nexus between
an inservice injury and disease and a present disability.
Caluza v. Brown, 7 Vet. App. at 506. Given the lack of
clinical evidence of that the veteran now suffers from the
residuals of an injury to the left long finger, the Board
finds that the veteran has not presented a well-grounded
claim in accordance with Rabideau v. Derwinski, 2 Vet. App.
141 (1992). Rabideau stands for the principle that in order
for service connection to be granted a current disability
must be present. If a disability does not presently exist,
then the claim will not be plausible, and thus, not well-
grounded.
In this instance, there are only his statements in support of
his claim. The record does not confirm the presence of
residuals of an finger injury. Mere contentions of the
veteran, no matter how well-meaning, without supporting
evidence, do not constitute a well-grounded claim. Rabideau
v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5
Vet. App. 19 (1993). Therefore, the claim fails and service
connection for this claimed condition is denied.
II. Gastritis
Although the veteran has submitted a claim for service
connection for gastritis, when questioned further as to
whether he actually had gastritis, he admitted that he did
not. When examined, he did not exhibit any signs of
gastritis or any other gastrointestinal disorder, disease, or
condition. X-ray films of the abdominal area revealed
nothing.
For a claim to be well-grounded, there must be competent
medical evidence of a current disability, the occurrence of a
condition or disability while in service, and a nexus between
an inservice injury and disease and a present disability.
Caluza v. Brown, 7 Vet. App. at 506. Given the lack of
clinical evidence of that the veteran now suffers from
gastritis, the Board finds that the veteran has not presented
a well-grounded claim in accordance with Rabideau v.
Derwinski, 2 Vet. App. 141 (1992). Rabideau stands for the
principle that in order for service connection to be granted
a current disability must be present. If a disability does
not presently exist, then the claim will not be plausible,
and thus, not well-grounded.
In this instance, the veteran’s statements do not support his
claim, and the record does not confirm the presence of
gastritis. Mere contentions of the veteran, no matter how
well-meaning, without supporting evidence, do not constitute
a well-grounded claim. Rabideau v. Derwinski, 2 Vet. App.
141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993).
Therefore, the claim fails and service connection for this
claimed condition is denied.
III. Left and Right Knee Conditions
As with the veteran’s claim for a left long finger condition
and a gastrointestinal disorder, the medical evidence fails
to show that the veteran now has a left or right knee
disability or condition. X-ray films taken in June 1994
produced the following results:
The bone density and architecture are
normal. There is no evidence of
osteolytic process. The joint spaces are
preserved without evidence of arthritic
changes. There is no soft tissue
swelling or calcification.
After being examined, the veteran was not diagnosed as having
a current disability, disease, or condition of either knee.
General Medical Exam, June 1, 1994.
For a claim to be well-grounded, there must be competent
medical evidence of a current disability, the occurrence of a
condition or disability while in service, and a nexus between
an inservice injury and disease and a present disability.
Caluza v. Brown, 7 Vet. App. at 506. Given the lack of
clinical evidence of that the veteran now suffers from
disabilities of the left or right knee, the Board finds that
the veteran has not presented a well-grounded claim in
accordance with Rabideau v. Derwinski, 2 Vet. App. 141
(1992). Rabideau stands for the principle that in order for
service connection to be granted a current disability must be
present. If a disability does not presently exist, then the
claim will not be plausible, and thus, not well-grounded.
In this instance, there are only the veteran’s statements
that he has disabilities of the left and right knee. The
medical record does not corroborate the presence of either
condition. Mere contentions of the veteran, no matter how
well-meaning, without supporting evidence, do not constitute
a well-grounded claim. Rabideau v. Derwinski, 2 Vet. App.
141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993).
Therefore, the claim fails and service connection for this
claimed condition is denied.
ORDER
1. Entitlement to service connection for gastritis is
denied.
2. Entitlement to service connection for the residuals of an
injury to the left long finger is denied.
3. Entitlement to service connection for a right knee
condition is denied.
4. Entitlement to service connection for a left knee
condition is denied.
REMAND
The veteran has requested a compensable rating for his
service-connected bilateral ankle disabilities. These two
conditions have been rated in accordance with 38 C.F.R. Part
4, Diagnostic Code 5271 (1997). Per 38 C.F.R. Part 4,
Diagnostic Code 5271 (1997), a 10 percent evaluation for a
right ankle disability will be deemed warranted when there is
moderate limitation of motion. A 20 percent evaluation
requires marked limitation of motion. The rate of
compensation takes into account the pain, weakness and other
disability manifestations associated with a limitation of
motion. For a rating higher than 20 percent, ankylosis (bony
fixation) of the ankle must be shown. See 38 C.F.R. Part 4,
Diagnostic Code 5271 (1997).
Since the veteran’s ankles were originally examined, the
Court has promulgated the case of DeLuca v. Brown, 8 Vet.
App. 202 (1995). In this case, the Court determined that
when a veteran’s disability is classified under a diagnostic
code that includes limitation of motion [such as 38 C.F.R.
Part 4, Diagnostic Code 5271 (1997)], the VA must address the
application of 38 C.F.R. § 4.40 regarding functional loss due
to pain. Furthermore, the Court concluded that:
. . . section 4.40 provides that
“[i]t is essential that the [rating]
examination . . . adequately portray the
. . . functional loss.” (Emphasis by
the Court). Accordingly, because DC 5201
provides for a rating solely on the basis
of loss of range of motion, “[t]he Court
holds that DC 5201 does not subsume 38
C.F.R. § 4.40, and that 38 C.F.R. § 4.14
[avoidance of pyramiding] does not forbid
consideration of a higher rating based on
a greater limitation of motion due to
pain on use including during flare-ups.”
The Court also holds that DC 5201 does
not subsume 38 C.F.R. § 4.45.
Here, the Court notes that the appellant
has testified under oath that his arm
becomes painful on use during the winter
months and causes him to miss work, and
there is medical evidence that his
shoulder condition will flare up at
times. The April 1990 VA examination
relied upon by the Board in denying the
appellant’s claim for an increased rating
for his left shoulder disability,
however, merely recorded the range of
motion at that time, and did not indicate
consideration of the factors cited in
section 4.40, and required by section
4.40 to be considered and portrayed in
the rating examination, as to functional
loss on use or due to flare-ups.
Consequently, the Court concludes that
the case must be remanded for the Board
to obtain a new medical examination which
complies with the requirements of section
4.40, and the medical examiner must be
asked to express an opinion on whether
pain could significantly limit functional
ability during flare-ups or when the arm
is used repeatedly over a period of time.
“Because DC 5201 provides for a rating
solely on the basis of loss of range of
motion, these determinations should, if
feasible, be ‘portray[ed]’ (§ 4.40) in
terms of the degree of additional range-
of-motion loss due to pain on use or
during flare-ups.”
In the appeal before us, the veteran’s ankle disabilities are
classified under limitation of motion. Also, the veteran’s
jaw disability is rated pursuant to his ability, or
inability, to move his jaw. Moreover, the veteran has
claimed that these conditions induce pain and discomfort.
Based on the instructions given by the Court in DeLuca, the
RO must discuss the effect of pain on the veteran’s
disabilities.
Additionally, the veteran has requested service connection
for the residuals of an injury to the right thumb. During
his testimony before the Board, he complained of pain and of
the thumb “dislocating”. Board Hearing Transcript,
September 23, 1997, pages 22-26. Although the veteran
complained about this thumb condition to the VA examiner in
June 1994, there is no indication that the examiner ever
examined the thumb. There are also no x-ray film reports
concerning the thumb in the veteran’s claims folder.
The VA must support its medical conclusions on the basis of
independent medical evidence in the record or through
adequate quotation from recognized treatises; it may not rely
on its own unsubstantiated medical judgment to reject expert
medical evidence in the record, but may reject a claimant’s
medical evidence only on the basis of other such independent
medical evidence. See Thurber v. Brown, 5 Vet. App. 119, 122
(1993); Hatlestad v. Derwinski, 3 Vet. App. 213, 217 (1992)
(Hatlestad II); Colvin v. Derwinski, 1 Vet. App. 171, 175
(1991). “If the medical evidence of record is insufficient,
or, in the opinion of the Board, of doubtful weight or
credibility, the Board is always free to supplement the
record by seeking an advisory opinion [or] ordering a medical
examination”. Colvin, supra; see Hatlestad II and Thurber,
both supra; see also 38 U.S.C.A. § 7109 (West 1991 & Supp.
1997); 38 C.F.R. § 20.901(a), (d) (1997). The Board is of
the opinion that it does not have sufficient medical evidence
to determine whether the veteran now has the claimed
disability, and believes that additional medical evidence
should be procured clarifying this matter.
Additionally, compensation and pension examinations are
provided for the purpose of developing the evidence necessary
for adjudicators to evaluate the claim. The scope of the
examination will generally depend upon the facts of the
particular case and upon what sort of evidence is needed in
order to facilitate a full and fair evaluation of the claim.
With respect to the veteran’s claim for hypertension, because
his service and post-service medical records do show elevated
blood pressure readings, the Board believes that the examiner
should have reviewed the entire record before examining the
veteran. Such a review would have clear up any questions the
Board has concerning an etiological relationship between the
elevated pressures. Thus, the RO should transmit to the
examiner copies of all pertinent medical records. See
VAOPGCPREC 20-95, Medical Records Review Prior to Rating
Examinations, July 14, 1995. This is to include copies of
the veteran’s service medical records.
With respect to the veteran’s claim for VA benefits for a
lower back condition, the service medical records do show
treatment for low back pain. Post-service records indicate
that the veteran now suffers from a lower back disability.
Although the RO denied service connection for this condition,
the RO did not submit medical evidence positively
establishing no etiological relationship between his current
condition and the one he endured while in service. The Board
believes that this in violation of Colvin v. Derwinski, 1
Vet. App. 171, 175 (1991), and that the claim should be
returned to the RO for the purpose of obtaining additional
medical information. See discussion above.
Hence, the case is REMANDED to the RO for the following
actions:
1. The RO should schedule the veteran
for an orthopaedic examination; said
examination should be conducted, if
possible, by a physician who has not
previously seen or treated the veteran.
The examination is to be conducted in
accordance with the VA Physician’s Guide
for Disability Examinations. All
necessary tests should be conducted, such
as range of motion studies and strength
tests, and the examiner should review the
results of any testing prior to
completion of the report. [It is
recommended that x-ray films of the
veteran’s right hand, back, and ankles be
accomplished.] The RO should request
that the examining orthopaedist and the
radiologist render diagnoses of all
current pathology of the back, ankles,
and hand found to be present and provide
a comprehensive report, including a
complete rational for all conclusions
reached.
The report of the orthopaedic examination
should include a description of the
effect, if any, of the veteran’s pain on
the function and movement of the ankles,
right thumb, and lower back.
Specifically, the examiner should provide
complete and detailed answers in the
examination report to the following
questions, which are directed toward
matters expressly for consideration under
38 C.F.R. §§ 4.40 and 4.45 (1997). In
responding to the following questions, it
is requested that the examiner comment on
any found disability.
a. What is the extent of limitation on
the ability to perform the normal working
movements of the ankles, lower back, and
right thumb with normal excursion,
strength, speed, coordination, and
endurance? It is essential that the
examination on which ratings are based
adequately portray the anatomical damage,
along with the functional loss, with
respect to all of these elements. See 38
C.F.R. § 4.40 (1997).
b. Is there any functional loss of the
right thumb, ankles, and lower back, and,
if so, is any functional loss due to
pain, supported by adequate pathology and
evidenced by the visible behavior of the
claimant undertaking the motion? See 38
C.F.R. § 4.40 (1997).
c. Is there any evidence of disuse of
the ankles, right thumb, and lower back
and, if so, what is the nature of that
evidence, e.g., atrophy, the condition of
the skin, absence of normal callosity or
the like? See 38 C.F.R. § 4.40 (1997).
d. Is there less movement than normal in
the ankles, right thumb, and lower back
and, if so, is it due to crepitus,
ankylosis, limitation or blocking,
adhesions, tendon-tie-up, contracted
scars, a combination of some or all of
these, or some other cause? See 38
C.F.R. § 4.45 (1997).
e. Is there weakened movement of the
lower back, right thumb (including the
hand), and ankles and, if so, is it due
to muscle injury, disease or injury of
peripheral nerves, divided or lengthened
tendons, some combination of some or all
of these, or some other cause? See 38
C.F.R. § 4.45 (1997).
f. Is there evidence of excess
fatigability of the right thumb, ankles,
and lower back? See 38 C.F.R. § 4.45
(1997).
g. Is there evidence of incoordination
of, or impaired ability to execute
skilled movements smoothly by, the lower
back, ankles, and right thumb and, if so,
is this the result of pain? See 38
C.F.R. § 4.45 (1997).
h. Is there evidence of pain on
movement, swelling, deformity or atrophy
of disuse of the lower back, ankles, and
right thumb? See 38 C.F.R. § 4.45 (1997).
i. Does the veteran have post-traumatic
arthritis at the ankles, right thumb, and
lower back? If so, is any arthritis of
the veteran’s lower back, ankles, and
right thumb attributable to an inservice
injury?
j. Is there any type of etiological
relationship between any found
disabilities of the lower back and right
thumb and the veteran’s military service?
Is there any type of etiological
relationship between any found
disabilities of the lower back and right
thumb and the “acute” back and thumb
injuries the veteran’s experienced while
in the military?
The claims folder and this Remand must be
made available to the examiner for review
prior to the examination. The results
proffered by the examiners must reference
the complete claims folders and any
inconsistent past diagnoses given. Also,
it is requested that the results of the
examinations be typed or otherwise
recorded in a legible manner for review
purposes.
2. The RO should provide the dental
examiner with the criteria set forth in
Diagnostic Code 9904 and 9905. 38 C.F.R.
Part 4 (1997). The examiner must also be
given an explanation of DeLuca, and how
it applies to the case before him/her.
The examiner should report all pertinent
findings on examination in relationship
to those Codes, and DeLuca, including
whether there is malunion of the
mandible, manifested by slight, moderate
or severe displacement as measured by the
degree of motion and loss of masticatory
function. The examiner should also
determine if there is limited motion of
temporomandibular articulation and set
for the range of lateral excursion and
interincisional range in millimeters.
The examiner should also be requested to
set forth diagnoses for each disability
found. In addition, the dental examiner
should be asked to determine whether the
jaw exhibits weakened movement, excess
fatigability, or incoordination
attributable to the service connected
disability; and, if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion loss due to any weakened
movement, excess fatigability, or
incoordination. Finally, the dental
examiner should be asked to express an
opinion on whether pain could
significantly limit functional ability
during flare-ups or when the jaw is used
repeatedly over a period of time. This
determination should also, if feasible,
be portrayed in terms of the degree of
additional range of motion loss due to
pain on use or during flare-ups.
3. The RO should arrange for the veteran
to be examined by a cardiologist who has
not previously treated or seen him. All
indicated special studies, to include
radiologic, stress test, and
echocardiogram studies, should be
accomplished and the examiner should set
for reasoning underlying the final
diagnosis. The RO should specifically
request that the examining VA physicians
comment on what limitation of daily
activities, if any, is imposed by any
found heart disorder, including
hypertension. The RO should request that
the cardiologist should provide an
opinion as to the nature of any found
functional cardiovascular classification
using the New York Heart Association
functional classification and/or the
Specific Activity Scale (metabolic
equivalent). The RO should also request
that the examiner express an opinion as
to the etiology of any found heart
condition, including hypertension, and
whether any found condition is related to
the veteran’s military service.
The claims folder and this Remand are to
be made available to the examiner for
review prior to the examination. The
results proffered by the examiner must
reference the complete claims folders and
any inconsistent past diagnoses given.
Also, it is requested that the results of
the examination be typed or otherwise
recorded in a legible manner for review
purposes.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination reports. If the examination
reports do not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, the reports must be returned
for corrective action. 38 C.F.R. § 4.2
(1997) (“. . . if the [examination]
report does not contain sufficient
detail, it is incumbent upon the rating
board to return the report as inadequate
for evaluation purposes.”). Green v.
Derwinski, 1 Vet. App. 121, 124 (1991);
Abernathy v. Principi, 3 Vet. App. 461,
464 (1992); and, Ardison v. Brown, 6 Vet.
App. 405, 407 (1994).
Following completion of the requested development, the
veteran’s claim should be readjudicated. If the decision
remains unfavorable, he, along with his accredited
representative, should be given a supplemental statement of
the case and allowed sufficient time for a response.
Thereafter, the claim should be returned to the Board for
further consideration.
No action is required of the veteran until he is contacted by
the regional office. The purpose of this REMAND is to ensure
due process and to obtain additional clarifying medical
evidence.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
LAWRENCE M. SULLIVAN
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
Pursuant to 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997), and subsequently Tirpak v. Derwinski, 2 Vet.
App. 609 (1992), a well-grounded claim requires more than just a mere allegation. In Tirpak, the United
States Court of Veterans Appeals (Court), held that the appellant in that case had not presented a well-
grounded claim as a matter of law. The Court pointed out that “. . . unlike civil actions, the Department of
Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an
allegation; the claimant must submit supporting evidence.” Tirpak, 2 Vet. App. at 611.
The Board also notes that during his testimony before the Board in September 1997, the veteran admitted
that he did not have any residuals from his left long finger injury. Board Hearing Transcript, September 23,
1997, pages 21 and 22.
“The patient denies a history of gastritis as mentioned in his claim but does report a long history of loose
stools, occasionally 3 to 4 times a day.” General Medical Exam, June 1, 1994.
The examiner did note, however, that the veteran had experienced a fracture of the left patella.
- 2 -